| In the traditional legal theory,the core idea in the field of private law is the principle of autonomy of will.During the Roman Empire,the germination of capitalism and the development of capitalism,as well as the dissemination of humanistic ideas,all promoted the actors'willingness to reach more agreements according to their own wishes,thus enabling legal acts to take effect.But since modern times,the development of capitalist free economy has also exposed that too free legal environment is not conducive to economic development.In addition to the influence of the principle of good faith in private law,modern civil codes also stipulate some effective elements for the entry into force of legal acts,whose purpose is to protect the safety of transactions while ensuring the entry into force of legal acts.However,such restrictions on the effective elements of legal acts tend to exceed the limit,but limit the effectiveness of legal acts and the party's autonomy of will.Therefore,the system of transformation of invalid legal acts has been called for by scholars.In judicial practice,when we try to use this theory to solve practical cases,we expose the problems in the application of law.From three perspectives,this paper puts forward concrete suggestions for the establishment of the system of transformation of invalid legal acts in China,namely,the rationale for the transformation of invalid legal acts,the comparative study of invalid legal acts and the application of invalid legal acts injudicial practice.In the first part of this paper,the theoretical basis of the system of invalid legal act transformation is analyzed,which mainly includes two aspects:the basic connotation and the attitude of the academic circles to this issue.First of all,the origin of the invalid legal act conversion system should be considered as originating from the"revival system of invalid legal act" in Roman law period.This system was inherited and developed in German Civil Code and French Civil Code,and gradually developed into the invalid legal act conversion system.The provisions on this system in the legislation of various countries embody the legislative reality of their own countries,and therefore have different characteristics,but they all have similar basic ways,namely,the validity of invalid legal acts,the existence of independent effective alternative acts and the validity of alternative acts should conform to the party's autonomy of will.The establishment of invalid legal acts is mainly based on the implementation of the principle of autonomy of the will and the principle of good faith,as well as the need to protect transaction security.Secondly,there are two main views in the academic circles about the system of transformation of invalid legal acts:one is in favor of the system and the other is in disapproval of the system.The main point of view of the supporter is to realize autonomy of will and safeguard the legitimate interests of the parties;the main point of view of the disapprover is that the transformation system of invalid legal acts is not conducive to safeguarding the interests protected by mandatory provisions of the law,and in the judicial process,judges tend to have too much discretion in the use of this system,which is not conducive to judicial fairness.The author is more in favor of establishing the system of transformation of invalid legal acts.The second part of this article mainly investigates the legislative mode of the system of transformation of invalid legal acts.First of all,in the civil law system,the legislative mode of the state is mainly divided into three forms:the general provision of the invalid legal act conversion system,the existence of the invalid legal act conversion system in the form of exceptions,and the parallel form of the general provision and the exceptional provision of the invalid legal act conversion system.Secondly,in Anglo-American law system,although the main characteristic of Anglo-American law system is to prescribe the legal system by the act of case law,it embodies the invalid legal act conversion system in the relevant statute law.From this point of view,the author believes that the establishment of the system of transformation of invalid legal acts is one of the trends in the development of law from the perspective of legislation in various countries.The third part of this article mainly combines the cases in judicial practice to analyze the problems existing in the establishment of invalid legal act system.First,the transformation of legal acts that fail to fulfil the statutory formal requirements.There are also many related cases in our country's practice,mainly in the department law which has many formal provisions,such as the Property Law.The system of transformation of invalid legal acts established by us is not an overhead mandatory provision,but a compulsory provision based on the parties'autonomy of will.We also believe that the courts should be able to follow the law and procedures when trying specific cases.Secondly,the transformation of legal acts that fail to fulfill the formal requirements of intent.This paper mainly cites the cases of German law to analyze the conversion of legal acts by courts when they try cases to seek the original intention of the parties.From the perspective of the original legal acts of the parties at the time of the acts,the first is to analyze the personal meaning of the legal actors,and the second is to explore the meaning of the actors according to the criteria of the general rational person,so as to transform the legal acts.The fourth part and the last part of this article put forward specific opinions on the construction of the system of transformation of invalid legal acts in China.Firstly,in substantive law,we should clearly stipulate the system of invalid legal act transformation,and adopt the parallel way of general provisions and special provisions.Secondly,in procedural law,judges should insist on legal interpretation first when applying the system,and judges should judge the goal of legal act and analyze the application of invalid legal act transformation system in different situations according to procedural requirements.The consequences of degree. |
PDF Full Text Request